A Parenting Amendment to the Constitution?

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October 2, 2020 by Robert Franklin, JD, Member, National Board of Directors

This looks to me like tilting at windmills, but, even so, it’s a sign of the times, and not a bad one (, 9/29/20).  The link is to a press release from the Family Preservation Foundation and its Executive Director, Dwight Mitchell.  The press release urges readers to sign the foundation’s petition that in turn urges Congress to adopt Resolution H.J. Res. 36 that would create a constitutional amendment establishing parental rights.

Here’s the text of the resolution put forward by Rep. Jim Banks of Indiana and that has 15 co-sponsors.

This joint resolution proposes a constitutional amendment stating that

-the liberty of parents to direct the upbringing, education, and care of their children is a fundamental right;

-the parental right to direct education includes the right to choose, as an alternative to public education, private, religious, or home schools, and the right to make reasonable choices within public schools for one’s child;

-neither the United States nor any state shall infringe upon these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served;

-the parental rights guaranteed by this amendment shall not be denied or abridged on account of disability; and

-this amendment shall not be construed to apply to a parental action or decision that would end life.

Now, as a practical matter, this resolution will not pass, nor will any such constitutional amendment.  The forces arrayed against amending the Constitution at all and particularly in such a way as to diminish governmental authority over parents and families (especially school choice) are simply too great to give us any hope that such an amendment will ever be seen in the founding document of this country.  All of that is true, petition or no petition.

Still, the resolution gives us the opportunity to ponder what such an amendment might mean.  My off-the-cuff guess is “not much.”  Why? 

Most importantly, we already have a body of Supreme Court case law that should do much of what the propose amendment seeks to do.  Troxel v. Granville says clearly that, absent unfitness on the part of a parent, states have no interest in intervening in parental decision-making.  And yet of course they do every day.  That’s especially true of child protective agencies nation-wide that think nothing of shanghaiing kids away from their parents on the slimmest of pretexts.  Those agencies know perfectly well that the U.S. Supreme Court is a long, long way away and that the overwhelming majority of parents they deal with have no idea of how to assert their rights or even that they have them vis-à-vis CPS.  Employees of state CPS agencies seem to care very little about parental rights and know that they’ll never be held to account for violating them.  They act with a generalized impunity.

After all, we already have a Fourth and a Fourteenth Amendment.  Together they limit states’ power to enter private residences without probable cause to believe that something criminal or, in the case of CPS, child abuse or neglect is afoot within.  And yet CPS officers routinely demand entry to children’s homes with neither a warrant nor probable cause.  Constitutional amendments are wonderful things (in most cases), but are often ignored by those sworn to abide by them.

It’s clear that the Family Preservation Foundation’s petition is aimed precisely at those CPS agencies.

Over 5-million American children have been separated from their parents in the last 20 years as reported by the U.S. Department of Health & Human services Children’s Bureau. The separating of children from fit parents is becoming normalized and must be stopped!…

Executive Director Dwight Mitchell who launched the petition says, “This Resolution needs immediate action from Congress now. What’s even more alarming is that a staggering 84% of all child removals are not related to any physical harm to the child whatsoever, but investigator discretion, and up to 83% of all investigations are ultimately concluded to have involved no abuse or neglect whatsoever as reported from the U.S. DHHS link above.

“The really scary part about all of this for me, as it should be for all parents, is that this taking of children from their parents is becoming normalized. It’s traumatizing to children, their families and a form of systemic violence. What’s even more alarming, is that the good citizens of this country are sitting back silently and allowing it to happen. Don’t they realize their children might be next unless we stop this now?”

Good thoughts all, particularly the one about the normalization of governmental taking of children.  I couldn’t agree more.

But the question “what to do about it?” remains and remains unanswered by a constitutional amendment.  Amending the Constitution is a long, tedious process, an expenditure of energy that, in this case might well result in little change to the status quo.  I like the Foundation’s dedication to parental rights and limiting state action, but I think there are better ways of achieving the ends sought.

Still, it’s a sign of the times that so many are trying so many things to preserve the family and the rights of parents to care for their children and children to meaningful relationships with their parents free of the heavy hand of the state.

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